State v. Ahmed

• Decision Date: 06 April 2022
• Docket Number: 29549-a-SRJ
• Citation: 2022 S.D. 20
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. KADIR HUSSEIN AHMED, Defendant and Appellant.
• Court: South Dakota Supreme Court

2022 S.D. 20

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. KADIR HUSSEIN AHMED, Defendant and Appellant.

No. 29549-a-SRJ

Supreme Court of South Dakota

April 6, 2022

CONSIDERED ON BRIEFS FEBRUARY 14, 2022

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE CAMELA THEELER Judge

JASON R. ADAMS of Tschetter & Adams Law Offices, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellant.

JASON R. RAVNSBORG Attorney General CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

JENSEN, CHIEF JUSTICE

[¶1.] Kadir Hussein Ahmed was charged with multiple counts arising from two separate incidents involving an alleged shooting and a later confrontation between Ahmed and two men. A jury found Ahmed guilty of seven counts, including aggravated assault by physical menace with a dangerous weapon and grand theft by receiving stolen property. Ahmed appeals both convictions arguing that the circuit court erred when it denied his motion for judgment of acquittal because there was insufficient evidence to support the convictions. We affirm.

Facts and Procedural History

[¶2.] On July 25, 2020, Angela Graham was awakened around 5:00 a.m by "some ruckus" and pounding at her door. After the pounding stopped, Graham claimed she walked outside and saw Ahmed. Graham alleged that Ahmed shot a gun three times forcing her to retreat to her apartment and call the police. During the 911 call, Graham identified the shooter as Ahmed who was driving a black vehicle. Graham recognized Ahmed as a friend of her oldest daughter.

[¶3.] Law enforcement responded to the call. Upon arrival and a brief inspection of the scene, the officers were unable to observe any evidence of a shooting and left the scene. Shortly after law enforcement left, Graham made a second 911 call stating that Ahmed had returned to her apartment door.

[¶4.] Officer Andrew Parrot responded to the second 911 call. Officer Parrot inspected the apartment and discovered bullet holes in and around the apartment. He believed the interior bullet holes were fresh, however no bullets or casings were found.

[¶5.] Graham identified Ahmed by his nickname, "K.D.," and shared Ahmed's Facebook profile with law enforcement. Graham also directed law enforcement to an apartment complex in Sioux Falls where Ahmed was staying. Law enforcement also discovered that Ahmed was driving his aunt's black Nissan Versa. Detective Pat Mertes and Logan Eilers were dispatched to the apartment complex where Ahmed was believed to be staying and located the vehicle registered to Ahmed's aunt in the parking lot. The detectives parked along the street to observe the vehicle. After a few minutes, Ahmed exited his apartment building and left in the vehicle. The detectives attempted to follow Ahmed but lost sight of him.

[¶6.] The detectives returned to Ahmed's apartment complex and observed Ahmed come out of an apartment building and approach a woman later identified as Racquel Jellis. Jellis was visiting her brother-in-law, Heath Range, and her boyfriend, Mitchell Erickson. Jellis testified that she had never met Ahmed but noticed him approaching her once she arrived at the apartment complex. Jellis became scared of Ahmed's presence and began to quickly walk away from him as he followed her into the apartment building. Once inside Range's apartment, Jellis informed both Erickson and Range that a man had followed her into the building.

[¶7.] Range and Erickson exited the apartment building to confront Ahmed about his interaction with Jellis. Range asked Ahmed, "What's going on man. That ain't your girlfriend." Range testified that Ahmed then pulled out a silver revolver from the front of his waistband and responded, "don't worry about it," and "you don't want none of this smoke [N-Word]. You don't want none of this smoke." Upon seeing the gun, Range and Erickson retreated into the apartment building and Ahmed walked away from the building.

[¶8.] The detectives observed the confrontation but due to a privacy fence between the detectives and the three individuals, they could only see the men's faces and top portion of their shoulders. Detective Eilers observed Range and Erickson show surprise or fear during the confrontation and retreat into the apartment building. Detective Eilers did not see a gun.

[¶9.] Ahmed then ran to his vehicle and attempted to leave the apartment complex parking lot. Officers Trent Ehler and Scott Hildebrand arrived at the apartment complex and initiated a traffic stop in the parking lot. As Officer Ehler exited his patrol vehicle, he heard someone yell, "he's got a gun." Ahmed exited his vehicle and ran toward the apartment buildings while holding the front of his waistband. At trial, Officer Ehler explained that based on his training and experience, he believed Ahmed was attempting to stabilize a firearm as he ran. Ahmed ran into an apartment building and locked himself in the apartment for several minutes. Additional officers arrived and directed Ahmed to exit the apartment. Another occupant came out of the apartment first. A few minutes later, Ahmed exited, told the officers that they needed a warrant to search his apartment, and law enforcement detained him without further incident.

[¶10.] Detective Eilers interviewed Ahmed, who was unable to provide a consistent timeline of his day leading up to his arrest. Ahmed claimed that he was having trouble recalling his day because he had been drinking. Ahmed denied any involvement in the shooting earlier that day and denied threatening Range and Erickson with a gun. Ahmed also asked Detective Eilers several times if she saw him pull a gun while motioning as if he were pulling out a gun from his waistband from the front of his pants. However, Ahmed denied that he had a gun during the confrontation. Ahmed stated that he ran from the officers because he had been drinking and believed an individual named Shalice had called the police on him.

[¶11.] Law enforcement later executed a search warrant for Ahmed's apartment. Officers found several unspent bullet rounds in different locations throughout the apartment, including in the pockets of a pair of pants that contained his personal identification card. The officers also discovered a black bumper in the apartment that matched the vehicle Ahmed was driving. In the apartment bathroom, Detective Mertes found a silver revolver wrapped in a white cloth hidden inside the garbage basket. Inside the revolver was one unspent bullet round, matching the other bullets found inside the apartment. Detective Mertes ran the serial number on the revolver, which revealed that the firearm was reported as stolen. At trial, Cory Burrell testified that in June 2020 his Silver Taurus .38 Special Ultralight revolver was stolen from his vehicle and he identified the gun found in Ahmed's apartment as his gun.

[¶12.] A grand jury indicted Ahmed on multiple counts stemming from the shooting at Graham's apartment and the later confrontation at Ahmed's apartment. Count 7 of the indictment charged Ahmed with a Class 3 felony for aggravated assault by physical menace with a deadly weapon pursuant to SDCL 22-18-1.1(5), stemming from the confrontation with Erickson outside the apartment.^[1] Count 11 charged Ahmed with a Class 6 felony for grand theft by receiving stolen property pursuant to SDCL 22-30A-17(2) and SDCL 22-30A-7, stemming from the firearm recovered at his apartment. At trial, Ahmed moved for a judgment of acquittal on all charges. The court took the motion for judgment of acquittal on Count 11 under advisement but denied the motion as to all other counts.^[2] The jury found Ahmed guilty on seven of the fourteen counts, including Counts 7 and 11. The convictions on seven of the charges all arose from the events at Ahmed's apartment complex. The jury found Ahmed not guilty on all the charges arising from the alleged shooting earlier in the day at Graham's apartment.

[¶13.] Ahmed appeals his convictions for aggravated assault by physical menace against Erickson in Count 7 and for grand theft by receiving stolen property in Count 11 arguing that the circuit court erred in denying his motion for judgment of acquittal.

Analysis and Decision

[¶14.] "[A] motion for judgment of acquittal attacks the sufficiency of the evidence, which is a question of law whether the motion is considered before or after the jury's verdict." State v. Wolf, 2020 S.D 15, ¶ 12, 941 N.W.2d 216, 220. "A question regarding the sufficiency of the evidence to sustain a conviction is reviewed de novo." State v. McReynolds, 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. When reviewing the sufficiency of the evidence, the Court considers "[w]hether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt." Wolf, 2020 S.D. 15, ¶ 13, 941 N.W.2d at 220 (citation omitted). On review, the Court "accept[s] the evidence and the most favorable inferences that can be fairly drawn from it that support the verdict." Id. (quoting State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). This Court does not "resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal. If the evidence including circumstantial evidence and reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty verdict will not be set aside." Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342).

I. Count 7 - Aggravated Assault by Physical Menace against Mitchell Erickson.

[¶15.] Any individual who "[a]ttempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm . . . is guilty of...